remanded H-1B Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 11285253 
Appeal of Nebraska Service Center Decision 
Form 1-129, Petition for Nonimmigrant Worker (H-lB) 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 2, 2020 
The Petitioner, an information technology provider, sought to continue to employ the Beneficiary under 
the H-lB nonimmigrant classification for specialty occupations.1 The H-lB program allows a U.S. 
employer to temporarily employ a qualified foreign worker in a position that requires both: (a) the 
theoretical and practical application of a body of highly specialized knowledge; and (b) the attainment 
of a bachelor's or higher degree in the specific specialty ( or its equivalent) as a minimum prerequisite 
for entry into the position . 
The U.S. Citizenship and Immigration Services (USCIS) initially approved the Form 1-129, Petition 
for a Nonimrnigrant Worker. The Director of the Nebraska Service Center then revoked that approval. 
The matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate 
eligibility by a preponderance of the evidence. 2 We review the questions in this matter de nova. 3 In 
this matter, for the reasons discussed below, we conclude that a remand is warranted . 
The Petitioner , which is located in Ohio, filed an H-lB extension petition for the Beneficiary to work 
offsite for an end-client in New York via a mid-vendor. Subsequent to the petition's approval, USCIS 
officers performed a site visit to the end-client's facilities. Based in part on information obtained 
during that site visit, USCIS revoked the petition's approval after issuing a notice of intent to revoke 
(NOIR).4 While we do not find all of the Petitioner's assertions on appeal accurate or persuasive, we 
do agree that the Director made only a passing reference to the site visit in the NOIR 5 and that the 
Petitioner was not required to begin paying the new wage until August 26, 2019. 6 In addition, while 
this appeal was pending , the U.S. District Court for the District of Columbia issued a decision in 
Itserve Alliance, Inc. v. Cissna, --- F.Supp.3d ---, 2020 WL 1150186 (D.D.C. 2020). Subsequently, 
USCIS rescinded previously issued policy guidance and directed its officers to apply the existing 
regulatory definition at 8 C.F.R. § 214.2(h)(4)(ii) to assess whether a petitioner and a beneficiary have 
1 See Immigration and Nationality Act (the Act) section 10l( a)(l5)(H)(i)(b) , 8 U.S.C. § l 10l(a)(l5)(H)(i)(b). 
2 Section 291 of the Act; Matter of Chawathe , 25 I&N Dec. 369, 375 (AAO 2010). 
3 See Matter of Christa 's Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). 
4 USCIS may revoke an H-lB petition approva l on notice, under five specific circumstances 8 C.F.R. 
§ 214.2(h)(l l)(iii) (A). 
5 See 8 C.F.R. § 103.2(b)(16) and 8 C.F.R. § 214.2(h)(l l)(iii)(B) . 
6 The Petitioner pays its employees on a monthly basis and the Beneficiary 's August 2019 paystub reflects a pro-rated 
increase in gross pay. The September 2019 paystub reflects the full increase. 
an employer-employee relationship. 7 Because this case is affected, in part, by the new policy 
guidance, we find it appropriate to remand the matter for the Director to consider the question anew 
and to adjudicate in the first instance any additional issues as may be necessary and appropriate. 
We also address an additional issue not discussed by the Director. As recognized by the court in 
Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), where the work is to be performed for 
entities other than the petitioner, evidence of the client companies' job requirements is critical. The 
court held that the former Immigration and Naturalization Service had reasonably interpreted the 
statute and regulations as requiring the petitioner to produce evidence that a proffered position 
qualifies as a specialty occupation on the basis of the requirements imposed by the entities using the 
beneficiary's services. Id. Such evidence must be sufficiently detailed to demonstrate the type and 
educational level of highly specialized knowledge in a specific discipline that is necessary to perform 
that particular work. The scenario in Defensor has repeatedly been recognized by federal courts as 
appropriate in determining which entity should provide the requirements of an H-1B position and the 
actual duties a beneficiary would perform. 8 
In this matter, the submitted "Supplemental Staffing Statement of Work" from the end-client indicates 
that the position is a "Level 3" at its organization, which is defined as "[i]ndividuals with more than 
ten (10) years experience within the specific Support Service Category." The minimum requirements 
include "10+ years implementing/supporting PeopleSoft Human Capital Module" and "5+ years of 
current experience developing with PeopleTools v.8.54." 9 However, the end-client's experience 
requirements are not reflected in the Level II wage listed on the labor condition application. 10 
Therefore, the Director should include this issue in a new NOIR, as the petition is not approvable and 
its prior approval, at a minimum, involved gross error. 8 C.F.R. § 214.2(h)(l l)(iii)(A)(5). 
Accordingly, we will remand the matter to the Director to issue a new NOIR in accordance with the 
applicable provisions. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
7 USCTS Policy Memorandum PM-602-0114, Rescission of Policy Memoranda at 2 (June 17, 2020), 
http://www.uscis.gov/legal-resources/policy-memoranda. 
8 See Altimetrik Corp. v. USCIS, No. 2: 18-cv-11754, at *3 (E.D. Mich. Aug. 21, 2019); Valorem Consulting Grp. v. USCIS, 
No. 13-1209-CV-W-ODS, at *6 (W.D. Mo. Jan. 15, 2015); KPK Techs. v. Cuccinelli, No. 19-10342, 2019 WL 4416689, 
at *10 (E.D. Mich. Sep. 16, 2019); Altimetrik Corp. v. Cissna, No. 18-10116, at *11 (E.D. Mich. Dec. 17, 2018); Sagarwala 
v. Cissna, 387 F. Supp. 3d 56, 69 n.5 (D.D.C. 2019). 
9 The October 16, 2019 letter from the end-client indicates that the Beneficiary holds these qualifications. 
10 The Level 1 V prevailing wage in the area of intended employment at the time the LCA was certified was $122,408, 
which is $32,408 more than the Beneficiary's stated wage of$90,000. 
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